Georgia State University Law Review
Volume 27
Issue 1 Fall 2010
Article 10
2010
CONSERVATION AND NATURAL
RESOURCES Water Resources
Georgia State University Law Review
Follow this and additional works at: http://readingroom.law.gsu.edu/gsulr
Part of the Law Commons
Recommended Citation
Georgia State University Law Review (2010) "CONSERVATION AND NATURAL RESOURCES Water Resources," Georgia State
University Law Review: Vol. 27: Iss. 1, Article 10.
Available at: http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
This Peach Sheet is brought to you for free and open access by the Publications at Reading Room. It has been accepted for inclusion in Georgia State
University Law Review by an authorized administrator of Reading Room. For more information, please contact [email protected].
: CONSERVATION AND NATURAL RESOURCES Water Resources
CONSERVATION AND NATURAL RESOURCES
Water Resources: Enact and Revise Provisions of Law Relating to
Water Supply and Water Conservation; State Legislative Findings;
Amend Chapter 5 of Title 12 of the Official Code of Georgia
Annotated, Relating to Water Resources, so as to Require the
Georgia Department of Natural Resources, Including Its
Environmental Protection Division, the Georgia Environmental
Facilities Authority, the Georgia Department of Community
Affairs, the Georgia Forestry Commission, the Georgia Department
of Community Health, Including Its Division of Public Health, the
Georgia Department of Agriculture, and the Georgia Soil and
Water Conservation Commission to Examine Their Practices,
Programs, Policies, Rules, and Regulations in Order to Develop
Programs and Incentives for Voluntary Water Conservation and to
Make Regular Reports of Measurable Progress to the Governor,
Lieutenant Governor, Speaker of the House, and General
Assembly; Require the Establishment of Best Management
Practices by Public Water Systems; Change Provisions Relating to
State and Local Watering Restrictions; Provide for the
Classification and Continuation or Discontinuation of Certain
Farm Use Water Withdrawal Permits; Provide for Measuring and
Separate Charging of Water to Units in Certain New Construction;
Amend Article 1 of Chapter 2 of Title 8 of the Official Code of
Georgia Annotated, Relating to Buildings in General, so as to
Require High-Efficiency Toilets, Shower Heads, and Faucets;
Require High-Efficiency Cooling Towers; Create the Joint
Committee on Water Supply; Provide for Related Matters; Provide
for an Effective Date; Repeal Conflicting Laws; and for Other
Purposes.
CODE SECTION:
BILL NUMBER:
ACT NUMBER:
GEORGIA LAWS:
O.C.G.A. §§ 12-5-4, -4.1 (new); 12-57, -31, -105, -180.1 (amended); 8-2-3,
-23 (amended)
SB 370
542
2010 Ga. Laws 732
185
Published by Reading Room, 2010
1
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
186
GEORGIA STATE UNIVERSITY LAW REVIEW
SUMMARY:
EFFECTIVE DATE:
[Vol. 27:1
The Act encourages state departments
to examine their water conservation
practices; standardizes leak reporting
by public water utilities; requires submetering of multifamily, commercial,
and industrial construction beginning
July 1, 2012; requires high efficiency
toilets, urinals, and fixtures in new
construction beginning July 1, 2012;
provides for the tracking of unused
water
withdrawal
permits
for
agriculture purposes and establishes a
process for those permits to revert back
to the state; and restricts outdoor
watering to between the hours of 4 p.m.
and 10 p.m. so as to avoid evaporative
loss and waste during the hottest hours
of the day.
June 10, 2010
History
For twenty years, Georgia has been engaged in a water war with
Florida and Alabama over Lake Lanier and the ApalachicolaChattahoochee-Flint River Basin (ACF River Basin).1 Although Lake
Sidney Lanier is located in Northeast Georgia, the lake is owned by
the federal government, rather than by the state.2 However, as the
population of Atlanta, the largest major city not built on a large body
1. For a detailed history of the conflict and resulting litigation, see generally Alyssa S. Lathrop, A
Tale of Three States: Equitable Apportionment of the Apalachicola-Chattahoochee-Flint River Basin, 36
FLA. ST. U.L. REV. 865, 867–78 (2009). The ongoing litigation has spurred much media coverage and a
plethora of legal articles. For a partial list of legal articles, see Robert Haskell Abrams, Water
Federalism and the Army Corps of Engineers’ Role in Eastern States Water Allocation, 31 U. ARK.
LITTLE ROCK L. REV. 395, 408, n.62 (2009). For links to media articles, see WaterWebster, Florida,
Alabama, Georgia Water Sharing, http://waterwebster.org/FloridaAlabamaGeorgia.htm.
2. Claire McClintic, A River Runs Through It: What States Along the Missouri River Can Learn
About Water Allocation From the Conflict in the ACF River Basin, 16 MO. ENVTL. L. & POL’Y REV.
201, 202 (2009).
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
2
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
187
of water,3 has exploded in recent years,4 Georgia has looked to Lake
Lanier as Atlanta’s primary source of water. The Army Corps of
Engineers, the managers of the lake, have allowed Georgia to enter
into five-year renewable contracts, which permit the storage and
withdrawal of local drinking water from Lake Lanier.5 As Georgia’s
demands for water have surged, the state has increasingly sought
reallocation of the lake’s water to supply the growing state’s thirst. In
response, Florida and Alabama, who also rely on the water from Lake
Lanier, have filed multiple suits over the last twenty years seeking to
enjoin this reallocation.6
In 2006, the already strained water situation was worsened by “one
of the worst droughts on record,” which caused Lake Lanier to fall
fifteen feet below the normal level.7 The drought soon “prompted a
three-state fight that has simmered for years to erupt into testy
exchanges over which [state] has the right to the lake’s dwindling
water supply and which [state] is or is not doing its share to conserve
it.”8 Whereas Alabama’s concerns centered on the effects of reduced
water supplies to its hydropower plants, which provide power for
much of the state,9 Florida sought to protect its ACF River Basin,10
which brings in over $130 million in revenue per year from its shrimp
3. Press Release, Shirley Franklin, Mayor of Atlanta, Stakeholder Letter on Water Conservation
(Nov. 11, 2007), available at http://www.atlantaga.gov/media/wcstakeholderletter_110707.aspx.
4. Georgia grew twenty-six percent between 1990 and 2000, and experts predict that the state’s
population will increase an additional thirty-four percent between 2000 and 2015. GEORGIA IN
PERSPECTIVE 2009, GOVERNOR’S OFFICE OF BUDGET AND PLANNING 9 (2009), available at
http://www.opb.state.ga.us/media/10681/georgia_in_perspective-2009.pdf.
5. McClintic, supra 2, at 202.
6. Id.
7. Peter Whoriskey, 3 States Compete for Water From Shrinking Lake Lanier, WASH. POST, Oct.
27, 2007, at A01. For a more in-depth discussion of the drought, watering restrictions, and legislation
passed in Georgia to protect the green industry and swimming pool industry during this period, see
Alexis Fairweather & Andrew Jones, Review of Selected 2008 Georgia Legislation, 25 GA. ST. U. L.
REV. 117 (2008).
8. Whoriskey, supra note 7.
9. Id. In the disputes, Alabama has argued that reallocation of water supplies to meet Georgia’s
growing need for water would cause higher hydropower costs, reduce dilution of water pollution, and
negatively impact the state’s ability to attract industry. Josh Clemons, Interstate Water Disputes: A Road
Map for States, 12 SE. ENVTL. L.J. 115, 136 (2004).
10. Lathrop, supra note 1, at 868. The Chattahoochee and Flint Rivers join together to form the
Apalachicola River, which deposits billions of gallons of nutrient-rich freshwater into the Apalachicola
Bay on a daily basis. Id.
Published by Reading Room, 2010
3
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
188
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
and oyster harvest.11 With the Apalachicola Bay housing several
federally-protected species, including the Clipola slabshell mussel,
the purple bankclimber mussel, the fat treeridge mussel, and the Gulf
Sturgeon,12 Florida filed a motion for a preliminary injunction
arguing that a proposed reallocation would result in the unlawful
taking of the endangered species under the Endangered Species Act.13
Although the court in that case found that the modifications in the
mussels’ habitats by the decreased flows were causing them to “[die]
in the hundreds,”14 it also held that the Army Corps of Engineers
could not be held “responsible for the absence of rain” due to the
severe drought.15 Based on the court’s holding denying the order,16
Florida filed suit against the U.S. Fish and Wildlife Service.17
Four pending cases in the on-going water wars litigation, including the
U.S. Fish and Wildlife Service case, were then consolidated into In re
Tri-State Water Rights Litigation (In re Tri-State).18 Georgia officials
soon characterized the debate as “man versus mussel,”19 and Georgia
officials criticized Florida for using the Endangered Species Act as a tool
to protect its lucrative oyster industry.20 However, the presiding judge in
the case, Judge Magnuson, held the “fundamental question” of the case
was whether the Corps had used the lake for purposes outside Congress’s
original authorization.21 Georgia argued that water supply was among the
authorized purposes of the Buford Dam project and, furthermore, that
water supply storage could be added under the supplemental authority of
11. Id. at 869 (“The Apalachicola Bay produces a shrimp harvest of six million pounds per year and
supplies ninety percent of Florida’s oysters and ten percent of all oysters consumed in the United
States.”).
12. Alabama v. U.S. Army Corps of Eng’rs, 441 F. Supp. 2d 1123, 1125 (11th Cir. 2005).
13. Id. at 1130.
14. Id. at 1132.
15. Id. at 1134.
16. Id. at 1138.
17. Lanthrop, supra note 1, at 872 (citing Florida v. U.S. Fish & Wildlife Serv., No. 4:06-cv-410
(N.D. Fla. 2006)).
18. In re Tri-State Water Rights Litigation, 639 F. Supp. 2d 1308, 1337 (M.D. Fla. 2009).
19. Whoriskey, supra note 7.
20. Governor Perdue reacted to Florida’s use of the Endangered Species Act in this litigation by
saying, “Utilizing the endangered species act [sic] as a weapon in this battle is somewhat disingenuous.
We know what this is about, we know its [sic] about the bay and the quality of the bay and the oysters
and that very powerful, very loud political constituency.” Harris Blackwood, Tri-state Water Wars
Fought on Many Fronts, GAINESVILLE TIMES (Dec. 8, 2008), available at
http://www.gainesvilletimes.com/news/archive/11872/.
21. In re Tri-State Water Rights Litigation, 639 F. Supp. 2d at 1310.
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
4
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
189
the Water Supply Act of 1958.22 After examining the legislative history
of the U.S. Congress’s authorization of the dam, Judge Magnuson found
that the original role of the Buford project was to provide flow regulation
for the Chattahoochee and that this purpose had been “changed
considerably” as “both the Corps and the municipal entities in the Atlanta
area began to envision the water supply benefit as a storage-andwithdrawal benefit.”23 The judge found Congress’s original authorization
only included navigational purposes, hydropower generation, and flood
control.24 Based on these findings, Judge Magnuson then “stunned”
Georgia officials25 by holding that Georgia did not have a right to
continue using Lake Lanier to withdraw water.26 Thus, the court held in
order for Georgia to continue to use Lake Lanier for its water supply, the
state must first gain congressional authorization for the changes in the
project.27 Understanding that such authorization would take time, Judge
Magnuson gave Georgia three years to either gain the needed
congressional approval or reach an agreement with its neighbors to the
west and south.28 Without such progress, Georgia faces the stark
possibility of losing its access to Lake Lanier in 2012.29 Should Judge
Magnuson’s ruling be implemented in 2012, 3.5 million metro-Atlanta
residents30 could lose up to 280 million gallons of water per day.31
One legal scholar blames Georgia’s failure to “constrain sprawl,
mandate water-conservation techniques in design and development,
or manage growth based on sustainable and secure water supplies”
for the state’s water woes.32 Throughout this water wars litigation, a
common criticism of Georgia has been the state’s failure to take
appropriate conservation measures. Following the extreme droughts
22. Blackwood, supra note 20.
23. In re Tri-State Water Rights Litigation, 639 F. Supp. 2d at 1321.
24. Id. at 1321.
25. Jeremy Redmon, Perdue Endorses Water Conservation; Unfiled Bills Seeks Leak Detection,
Incentives, Possible New Reservoirs, ATLANTA J.-CONST., Feb. 4, 2010, at 1A.
26. In re Tri-State Water Rights Litigation, 639 F. Supp. 2d 1308, 1347 (M.D. Fla. 2009).
27. Id.
28. Id. at 1355.
29. Id.
30. Bill Rankin, Court Allows Georgia to Appeal Water Ruling, ATLANTA J.-CONST., Jan. 21, 2010,
available at http://www.ajc.com/news/atlanta/court-allows-georgia-to-279964.html.
31. Valarie Edwards & Susanna Capelouto, Billions at Stake in Water War, GPB NEWS, Nov. 23,
2009, http://www.gpb.org/news/2009/11/23/billions-at-stake-in-water-war.
32. Craig Anthony Arnold, Water Privatization Trends in the United States: Human Rights, National
Security, and Public Stewardship, 33 WM. & MARY ENVTL. L. & POL’Y REV. 785, 787 (2009).
Published by Reading Room, 2010
5
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
190
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
in 2007, Alabama Governor Bob Riley “chided Georgia for its lack of
conservation efforts” during the development of the drought, noting
that “the state did not impose its ban on outdoor watering until the
end of summer.”33 A New York Times article reported that a year into
the drought, “fountains sprayed and football fields were watered,
prisoners got two showers a day and Coca-Cola’s bottling plants
chugged along at full-strength.”34 Furthermore, critics claimed the
watering ban was lifted too soon, evidencing Georgia’s lack of
commitment to long-term conservation.35
Many Georgians saw the situation differently. Georgia counties
implemented strict watering restrictions in 2008,36 and Georgia
citizens made concerted efforts to conserve water.37 Furthermore, a
year after the watering bans were lifted, the fifty-five counties that
had been hardest hit by the restrictions used less than 2% more during
the month of June than they had the prior June when the watering
bans were in place.38
In an effort to show Georgia’s ongoing commitment to water
conservation, Georgia lawmakers introduced SB 370, dubbed the
“Water Stewardship Act,” in the 2009–2010 legislative session. The
Act is based on recommendations made by the Governor’s Water
Contingency Task Force, which was formed to examine possible
solutions to Georgia’s water needs following Judge Magnuson’s
ruling.39 Various groups, including the Georgia Chamber of
33. Whoriskey, supra note 7 (“‘Atlanta can’t spend all summer during a drought watering their
lawns and flowers and then expect someone else to bail them out,’ Riley said.”).
34. Shaila Dewan & Brenda Goodman, New to Being Dry, the South Struggles to Adapt, N.Y. TIMES,
Oct. 23, 2007, available at http://www.nytimes.com/2007/10/23/us/23drought.html.
35. See e.g., Lathrop, supra note 1, at 892–893. The author concludes that although Georgia has “no
incentives to conserve water for the benefit of other users,” the state “must take immediate steps to
conserve for its own benefit as well as for the benefit of the Forgotten Coast (ACF River Basin), its way
of life, and even the mussels.” Id. at 901.
36. Fairweather & Jones, supra note 7, at 119.
37. Water Crisis: Lake Lanier, ATLANTA J.-CONST., June 8, 2008, at 3C.
38. Susanna Capelouto, Georgians are Not ‘Water Hogs,’ GPB NEWS, July 29, 2009,
http://www.gpb.org/news/2009/07/29/georgians-are-not-water-hogs. Environmental protection chief
Carol Couch said that these figures showed that Georgia was not wasting water and that the data has
“the coincidental benefit of dismissing some of the perceptions that are out there and promoted by our
neighboring states that we’re water hogs over here.” Id.
39. Redmon, supra note 25. See WATER CONTINGENCY PLANNING TASK FORCE FINDINGS AND
RECOMMENDATIONS (Dec. 21, 2009), http://www.georgia.gov/vgn/images/portal/cit_1210/59/57/
154449884Water%20Contingency%20Planning%20Task%20Force%20Final%20Report.pdf
[hereinafter Task Force Findings and Recommendations].
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
6
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
191
Commerce, the North Atlanta Chamber of Commerce, the
Governor’s Agribusiness Council, the Georgia Association of Water
Professionals, the Georgia Apartment Association, and many others,
came together to draft a conservation bill that would make an impact,
while also taking into consideration the interests of business and
industry.40 According to Governor Perdue, the Act “codif[ies]
Georgia’s culture of conservation.”41
Bill Tracking of SB 370
Consideration and Passage by the Senate
Senators Ross Tolleson (R-20th), John Bulloch (R-11th), Bill
Cowsert (R-46th), George Hooks (D-14th), Dan Weber (R-40th), and
Bill Heath (R-31st), respectively, sponsored SB 370.42 The Senate
read the bill for the first time on February 5, 2010.43 Senate President
Pro Tempore Tommie Williams (R-19th) assigned the bill to the
Committee on Natural Resources and Environment.44
Section 2 of the bill, as introduced, required in Code section 12-5-4
that the agencies referred to in the bill “identify and provide for rules,
regulations, incentives, or opportunities to . . . [e]ncourage the
installation of residential and commercial drought tolerant landscapes
and landscaping practices.”45 The Senate Committee on Natural
Resources and Environment amended SB 370, with regard to section
2 of the bill concerning Code section 12-5-4, by removing previous
language regarding requirements for outdoor watering restrictions
and adding language requiring the agencies to “[e]xamine the effect
that water conservation has on water rates and consider policies to
mitigate the financial impact that rate increases or reductions in water
40. Interview with Will Wingate, Vice President of Advocacy and Land Acquisition Georgia
Conservancy (May 3, 2010) [hereinafter “Wingate Interview”].
41. Redmon, supra note 25. According to Governor Perdue, “These are the right things to do,
whether the judge’s ruling is sustained or not . . . . Conservation will need to be a part of our future
because it’s the right thing to do. We cannot treat water as having no value.” Id.
42. See SB 370, as introduced, 2010 Ga. Gen. Assem.
43. State of Georgia Final Composite Status Sheet, SB 370, Apr. 29, 2010.
44. Id.
45. SB 370, as introduced, § 2, p. 2, ln. 46, 57–58, 2010 Ga. Gen. Assem.
Published by Reading Room, 2010
7
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
192
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
use have on water utilities and waters users.”46 Additionally, the word
“tenant” was changed to “unit” throughout the bill.47 With regard to
section 3 of the bill, as introduced, the Committee created an
additional requirement that water audits conducted by public water
systems be submitted to the Division of Natural Resources and posted
on the division’s website.48
Section 4 of the bill, as introduced, amended Code section 12-5-31
by adding subsection (p), which required certain agencies to establish
a program encouraging voluntary monitoring of surface-water
withdrawals by permittees before July 1, 2010.49 The Senate
Committee on Natural Resources and Environment amended
subsection (p) by removing the language as introduced and replacing
it with a much longer and more detailed subsection that outlined the
establishment of three categories of farm use surface water
withdrawal permits: active, inactive, and unused.50 These categories
were not included in the bill as introduced because at that time,
discussions with the agricultural community regarding the specific
language to use were still ongoing.51 According to Senator Tolleson,
these categories were added in order for the state to better inventory
permits and understand the amount of water that the state is actually
using.52 Before this change, there was only one type of permit, and
even unused permits were still figured into the water consumption
calculation because there was nothing identifying the permit as being
unused or inactive.53
46. Compare SB 370 (SCS), § 2, p. 3, ln. 73–75, 2010 Ga. Gen. Assem., with SB 370, as introduced,
§ 2, p. 3, ln. 72–73, 2010 Ga. Gen. Assem.
47. Compare SB 370 (SCS), p. 1, ln. 14, 2010 Ga. Gen. Assem., and SB 370 (SCS), § 2, p. 3, ln. 63,
2010 Ga. Gen. Assem., with SB 370, as introduced, p. 1, ln. 14, 2010 Ga. Gen. Assem., and SB 370, as
introduced, § 2, p. 2, ln. 62, 2010 Ga. Gen. Assem. Compare SB 370 (SCS), § 6, p. 7, ln. 216, 224, 236,
238, 240, 2010 Ga. Gen. Assem., and SB 370 (SCS), § 6, p.83, ln. 242–43, 2010 Ga. Gen. Assem., with
SB 370, as introduced, § 5, p. 5, ln. 157, 159, 163, 167, 2010 Ga. Gen. Assem. and SB 370, as
introduced, § 5, p. 6, ln. 169–170, 2010 Ga. Gen. Assem.
48. SB 370 (SCS), § 3, p. 5, ln. 135–37, 2010 Ga. Gen. Assem.
49. SB 370, as introduced, § 4, p. 5, ln. 134–39, 2010 Ga. Gen. Assem.
50. Compare SB 370 (SCS), § 4, p. 5, ln. 139–68, 2010 Ga. Gen. Assem. with SB 370, as introduced,
§ 4, p. 5, ln. 134–39, 2010 Ga. Gen. Assem. This amended version of the bill also includes definitions of
each type of permit and instructions for reclassifications of permits. See SB 370 (SCS), § 4, p. 5, ln.
145–55, 2010 Ga. Gen. Assem.
51. See Interview with Sen. Ross Tolleson (R-20th) (May 3, 2010) [hereinafter Tolleson Interview].
52. Id.
53. Id. The language used for the new types of permits was developed by the technical team, water
team, and policy team of the Farm Bureau. Video Recording of Senate Proceedings, Mar. 10, 2010 at 1
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
8
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
193
The Committee also amended the bill as introduced by adding a
new section 5, which addresses Code section 12-5-105 relating to
ground water permits, and establishes three categories of permits:
active, inactive, and unused.54 Similar to the three categories for
surface water permits, the ground water permit categories were
created to assist in cataloging permits and are a “major step” in
understanding how much water is actually being used by the state.55
The Committee also amended the previous section 5 of the bill as
introduced, now section 6, relating to Code section 12-5-180.1. The
Committee added a new subsection (e)(4), allowing the issuance of
temporary waivers for building owners or operators who are
temporarily unable to comply with the Code due to circumstances
beyond their control.56 This subsection was added to provide owners
or operators with temporary relief from compliance should some sort
of catastrophe occur that would prevent them from complying with
the Code section.57 Additionally, a new subsection (d) was added
requiring all new multiunit retail, multiunit light industrial buildings,
and retail components of mixed use developments to be constructed
in a way that allows for measurement of water use by each separate
unit.58 According to Senator Tolleson, this subsection was added to
ensure accountability for water use.59 Sub-metering makes
individuals responsible for their own water use and will hopefully
make them more cognizant of the amount of water they use,
ultimately leading to more conservation of water.60 In order to further
promote water efficiency, the Committee amended what was
hr., 23 min., 40 sec. (remarks by Senator Ross Tolleson (R-20th)), http://mediam1.gpb.org/
ga/leg/2010/ga-leg-senate_031010_.wmv [hereinafter Senate Floor Video].
54. Id.; SB 370 (SCS), § 5, p. 6, ln. 173–98, 2010 Ga. Gen. Assem.
55. Tolleson Interview, supra note 51.
56. SB 370 (SCS), § 6, p. 8, ln. 247–52, 2010 Ga. Gen. Assem.
57. Tolleson Interview, supra note 51. A new subsection (e)(5) was also added to the Code section
which relieves owners and operators from liability for errors resulting from “unaffiliated third-party
billing or meter reading companies.” SB 370 (SCS), § 6, p. 8, ln. 253–55, 2010 Ga. Gen. Assem.
58. SB 370 (SCS), § 6, p. 7, ln. 222–33, 2010 Ga. Gen. Assem. The subsection provides for certain
exceptions for buildings which are renovated or rebuilt after July 2, 2012 and allows multiunit office
buildings and the office component of mixed use developments to seek reimbursement from office
tenants for water and waste-water use. Id.
59. Tolleson Interview, supra note 51.
60. Id. Another provision was added to allow counties, municipals, or other water systems to charge
a fee or levy “for the installation or use of publicly owned meters or other devises which measure or
assist in the measurement of water use.” SB 370 (SCS), § 6, p. 8, ln. 259–61, 2010 Ga. Gen. Assem.
Published by Reading Room, 2010
9
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
194
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
previously section 6 of the bill as introduced, now section 7, by
adding a new subsection to Code section 8-2-3 that requires all
flushing urinals to meet WaterSenseTM flushing specifications.61
The bill, as introduced, called for the creation of the Joint Committee
on Water supply with four at-large members to be appointed by the
Governor.62 The Senate Committee on Natural Resources and
Environment amended this section by eliminating at-large members
appointed by the Governor and decreasing the number of committee
appointees by the Senate and House of Representatives.63 On February
18, 2010, the Committee favorably reported on the SB 370 committee
substitute.64 SB 370 was read for a second time on March 8, 2010, and
read for a third time on March 9, 2010.65
Senator Tolleson offered a floor substitute bill on March 10,
2010.66 This substitute bill amended the committee’s substitute bill
by adding a new section 4 that amends Code section 12-5-7(a)(1) by
including permission to impose restrictions during “nondrought
periods.”67 Thus, this language provided for more stringent
restrictions than those applicable only during “state declared” periods
of drought.68 Additionally, this substitute bill created a new
subsection (a)(4) to Code section 12-5-7, which allowed the
Environmental Division to revoke, suspend, or modify water
withdrawal or waste treatment permits that violate certain provisions
of the Code section.69 According to Senator Tolleson, this language
61. See SB 370 (SCS), § 7, p. 10, ln. 332, 2010 Ga. Gen. Assem. WaterSenseTM is a program
sponsored by the United States Environmental Protection Division that aims to “protect the future of our
nation’s water supply by promoting water efficiency and enhancing the market for water-efficient
products, programs, and practices.” WATERSENSE, U.S. ENVIRONMENTAL PROTECTION AGENCY,
http://www.epa.gov/watersense/about_us/ index.html (last visited May 14, 2010).
62. SB 370, as introduced, § 8, p. 10, ln. 332–33, 2010 Ga. Gen. Assem.
63. Compare SB 370 (SCS), § 9, p. 12–13, ln. 4180–22, 2010 Ga. Gen. Assem. with SB 370, as
introduced, § 8, p. 10, ln. 332–37, 2010 Ga. Gen. Assem.
64. State of Georgia Final Composite Status Sheet, SB 370, Apr. 29, 2010.
65. Id.
66. See SB 370 (SFS), 2010 Ga. Gen. Assem. Sen. John Bulloch (R-11th) also spoke in favor of the
bill that day. See Senate Floor Video, supra note 53, at 1 hr., 35 min., 40 sec. (remarks by Sen. John
Bulloch (R-11th)).
67. SB 370 (SFS), § 4, p. 5, ln. 142–46, 2010 Ga. Gen. Assem.
68. Id.
69. Id. § 4, p. 6, ln. 175–80.
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
10
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
195
was added as the “helping force” to ensure that these new
requirements are followed.70
Senator Tolleson’s substitute bill further amended Code section
12-5-7 by adding subsection (a)(1.1), which limits daily outdoor
irrigation “for purposes of planting, growing, managing, or
maintaining ground cover, trees, shrubs, or other plants” to the hours
of 4 p.m. to 10 a.m.71 This language was added because it is the most
efficient time of day for maximum water usage to reduce the amount
of water that will be needed for watering purposes.72 Additionally,
there are thirteen exceptions to this limitation.73 The substitute bill
also added a provision granting permittees who feel “aggrieved or
adversely affected by any order or action of the director of the
Environmental Protection Division pursuant to this Code” the right to
a hearing.74 The Senate passed the bill by substitute with a vote of 52
to 0.75
Consideration and Passage by the House of Representatives
On March 11, 2010, the House of Representatives first read SB
370, and Speaker of the House David Ralston (R-7th) assigned the
bill to the House Committee on Rules.76 In committee,
Representative Lynn Smith (R-70th) spoke in favor of the bill, saying
that Senate Bill 370 is “word for word” the same as House Bill 1094,
which was passed out of the House the previous week.77 There was
debate about sending the bill to the Rules Committee without it first
going to the House Committee on Natural Resources and
Environment.78 Representative Dubose Porter (D-143rd) in particular
70. Tolleson Interview, supra note 51.
71. SB 370 (SFS), § 4, p. 6, ln. 181–83, 2010 Ga. Gen. Assem.
72. Tolleson Interview, supra note 51.
73. SB 370 (SFS), § 4, p. 6, ln. 184–204, 2010 Ga. Gen. Assem. For a full list of exceptions, see
infra note 112.
74. SB 370 (SFS), § 4, p. 7, ln. 221–30, 2010 Ga. Gen. Assem.
75. Georgia Senate Vote Record, SB 370 (Mar. 10, 2010).
76. State of Georgia Final Composite Status Sheet, SB 370, Apr. 29, 2010.
77. Video Recording of House Rules Committee Meeting (Mar. 16, 2010) at 55 sec. (remarks by
Rep. Lynn Smith (R-70th)), http://mediam1.gpb.org/ga/leg/2010/Rm341_HseRulCom_031610.wmv
[hereinafter House Committee Video]. The Senate floor substitute by Sen. Tolleson took the exact same
language as House Bill 1094. Id.
78. See House Committee Video, supra note 77, at 2 min., 3 sec. to 3 min., 36 sec.
Published by Reading Room, 2010
11
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
196
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
was concerned with members of the Natural Resources Committee
not having the opportunity to discuss issues relating to the bill.79
Chairman of the Rules Committee, Bill Hembree (R-67th), argued
that it was unnecessary to send the bill to the Committee on Natural
Resources and Environment because it was the exact same bill the
Committee had already passed.80 Representative Porter
unsuccessfully moved to have the bill sent to the Natural Resources
committee, and the Rules Committee reported favorably on the bill
on March 16, 2010.81
Senate Bill 370 was read for a third time in the House on March
18, 2010.82 Representative Smith spoke in favor of passage of the
bill.83 Representative Porter again raised concerns about the bill
going directly to the Rules Committee without going through the
House Committee on Natural Resources and Environment.84
Representative Matt Ramsey (R-72nd), in response, stated that the
bill was the result of “nine meetings with multiple amendments added
by the minority party through that entire very inclusive process.”85
Representative James Mills (R-25th) argued that House Bill 1094
was the exact same bill as the one before them.86 The bill was then
passed with no amendments or substitutions with 154 votes in favor
and 8 votes opposing the bill.87 On May 3, 2010, the bill, as passed
by both the Senate and the House of Representatives, was sent to
Governor Sonny Perdue.88 Governor Perdue signed the bill into law
on June 1, 2010.89
79. Id. at 2 min., 3 sec. (remarks by Rep. Dubose Porter (D-143rd)).
80. Id. at 2 min., 26 sec. (remarks by Rep. Bill Hembree (R-67th)).
81. Id. at 3 min., 36 sec. (remarks by Rep. Dubose Porter (D-143rd)); State of Georgia Final
Composite Status Sheet, SB 370, Apr. 29, 2010.
82. State of Georgia Final Composite Status Sheet, SB 370, Apr. 29, 2010.
83. Video of House Proceedings, Mar. 18, 2010 at 1 hr., 48 min., 31 sec. (remarks by Representative
Lynn
Smith
(R-70th)),
http://mediam1.gpb.org/ga/leg/2010/Rm341_HseRulCom_031610.wmv
[hereinafter House Floor Video].
84. Id. at 1 hr., 50 min., 21 sec. (remarks by Rep. DuBose Porter (D-143rd)).
85. Id. at 1 hr., 53 min., 13 sec. (remarks by Rep. Matt Ramsey (R-72nd)).
86. House Floor Video, supra note 83, at 1 hr., 53 min., 35 sec., (remarks by Rep. James Mills (R25th)).
87. Georgia House of Representatives Vote Record, SB 370 (Mar. 18, 2010).
88. State of Georgia Final Composite Status Sheet, SB 370, Apr. 29, 2010.
89. Id.
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
12
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
197
The Act
The Act amends Chapter 5 of Title 12 to require the development
of programs and incentives for voluntary water conservation,
including the establishment of best management practices by public
water systems.90 The Act further amends this chapter by changing
provisions relating to state and local watering restrictions,91 and
provides for the classification of certain farm use water withdrawal
permits92 and the measuring and separate charging of water to units
in certain new construction.93 The Act also amends Article 1 of
Chapter 2 of Title 8 to require high-efficiency toilets, shower heads,
faucets, and cooling towers.94 Lastly, the Act creates the Joint
Committee on Water Supply.95
Section 1 of the Act discusses the recognition by the General
Assembly of the need to “create a culture of water conservation in the
State of Georgia” and plan for “water supply enhancement” in the
event of future extreme drought conditions or other water related
emergencies.96 In this section, the General Assembly directs the
Georgia Department of Natural Resources to work with specific state
agencies to develop programs for water supply and conservation.97
Section 2 of the Act inserts a new Code section 12-5-4, in lieu of
reserved Code section 12-5-4, and discusses the development of
programs and incentives for voluntary water conservation and the
enhancement of the state’s water supply.98 Subsection (a) discusses
what agencies are intended to be included by use of the word
“agency” in this Code section.99 Subsection (b) requires state
agencies to examine their current practices and policies and to
90. O.C.G.A. §§ 12-5-4, -4.1 (Supp. 2010).
91. Id. § 12-5-7.
92. Id. §§ 12-5-31, -105.
93. Id. § 12-5-180.1.
94. Id. §§ 8-2-3, -23.
95. SB 370, as passed, § 10, p. 15–16, ln. 511–30, 2010 Ga. Gen. Assem.
96. Id.
97. Id. The state agencies the referred to here are the Environmental Protection Division, the Georgia
Environmental Facilities Authority, the Georgia Department of Community Affairs, the Georgia
Forestry Commission, the Georgia Department of Community Health, including its Division of Public
Health, the Georgia Department of Agriculture, and the Georgia Soil and Water Conservation
Commission. Id.
98. O.C.G.A. § 12-5-4 (Supp. 2010).
99. Id. § 12-5-4(a).
Published by Reading Room, 2010
13
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
198
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
provide regulations, rules, opportunities, or incentives for specific
water conservation efforts on or before August 1, 2010.100 Likewise,
subsection (c) requires the agencies to provide regulations, rules,
opportunities, or incentives to enhance water supply by August 1,
2010.101 Lastly, subsection (d) governs the administrative procedures
and reporting requirements.102
Section 3 of the Act creates Code section 12-5-4.1, establishing the
best management practices by public water systems.103 Subsection (a)
defines terms,104 and subsection (b) requires the Board of Natural
Resources to “adopt rules for the minimum standards and best
practices for monitoring and improving the efficiency and
effectiveness of water use by public water systems to improve water
conservation” by January 1, 2010.105 The best practices program must
establish an infrastructure leakage index and categories of public
water systems, include phased-in approaches for required
standardized audits by public water systems, and employ water loss
detection programs.106
Section 4 of the Act amends Code section 12-5-7 regarding local
variances from state restrictions on outdoor watering.107 This section
adds more stringent restrictions on outdoor use during “nondrought
periods or state declared” drought periods than current applicable
state imposed restrictions.108 Additionally, Section 4 creates
subsection (a)(4) to Code section 12-5-7, which grants power to the
director of the Environmental Protection Division to revoke, suspend,
100. Id. § 12-5-4(b). These water conservation efforts include encouraging residential and commercial
use of water-efficient fixtures and landscaping irrigation systems, the use of rain water and gray water in
lieu of potable water where appropriate, installing sub-meters on multifamily complexes and multiunit
commercial and industrial complexes, public water systems for improving water loss abatement
programs, and the water conservation guidelines. Id. The agencies are also required to examine the
effect water conservation has on water rates and develop policies to mitigate the financial impact. Id.
101. Id. § 12-5-4(c). The agencies are also directed to identify opportunities for funding and research
water management measures that may enhance water supply. Id.
102. O.C.G.A. § 12-5-4(d) (Supp. 2010). Each agency must also submit an interim report to the
Governor, Lieutenant Governor, and Speaker of the House on or before July 1, 2010, with a final report
submitted to the General Assembly on or before August 1, 2010. Id. More detailed reports must be
submitted to the General Assembly on or before January 1 annually.
103. Id. § 12-5-4.1.
104. Id. § 12-5-4.1(a).
105. Id. § 12-5-4.1(b).
106. Id.
107. O.C.G.A. § 12-5-7 (Supp. 2010).
108. Id. § 12-5-7(a)(1).
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
14
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
199
or modify water withdrawal or waste treatment permits that violate
certain provisions of the Code section.109 Section 4 also creates
subsection (a.1) of Code section 12-5-7.110 Subsection (a.1)(1) allows
for the daily outdoor irrigation for planting, managing, growing, and
maintaining of plants between the hours of 4 p.m. and 10 a.m.
only,111 and subsection (a.1)(2) lists exceptions to subsection
(a.1)(1).112 Finally, Code section 12-5-7(d) grants a permittee who is
aggrieved or adversely affected by action taken by the Environmental
Protection Division under this Code section the right to have a
hearing pursuant to Code section 12-2-2.113
Sections 5 and 6 of the Act establish three categories for farm use
surface water and ground water withdrawal permits: active, inactive,
and unused.114 The agriculture industry strongly supported these
sections, and significant work went into coming up with language
that addressed concerns and ensured that only actual active water
withdrawal permits are recognized for calculation purposes.115 Code
section 12-5-31 relates to permits for withdrawal, diversion, or
impoundment of surface waters, and Section 5 of the Act amends this
section by creating a new subsection (p).116 This new subsection
defines each category and provides for notification requirements for
109. Id. § 12-5-7(a)(4).
110. Id. § 12-5-7 (a.1).
111. Id. § 12-5-7 (a.1)(1).
112. O.C.G.A. § 12-5-7 (a.1)(2) (Supp. 2010). These exceptions are: commercial agricultural
operations as defined in Code section 1-3-3; capture and reuse of cooling system condensate or storm
water in compliance with applicable local ordinances and state guidelines; reuse of gray water in
compliance with Code section 31-3-5.2 and applicable local board of health regulations adopted
pursuant thereto; use of reclaimed waste water by a designated user from a system permitted by the
Environmental Protection Division of the department to provide reclaimed waste water; irrigation of
personal food gardens; irrigation of new and replanted plant, seed, or turf in landscapes, golf courses, or
sports turf fields during installation and for a period of 30 days immediately following the date of
installation; drip irrigation or irrigation using soaker hoses; hand watering with a hose with automatic
cutoff or handheld container; use of water withdrawn from private water wells or surface water by an
owner or operator of property if such well or surface water is on said property; irrigation of horticultural
crops held for sale, resale, or installation; irrigation of athletic fields, golf courses, or public turf grass
recreational areas; installation, maintenance, or calibration of irrigation systems; and hydroseeding. Id.
113. Id. § 12-5-7(d). Filing for a hearing under this Code section will stay the order of the director of
the Environmental Protections Division for a maximum of five days at which point it will be
automatically lifted but will not affect the petitioner’s right to a hearing. Id.
114. See id. §§ 12-5-31(p), 105(d).
115. Senate Floor Video, supra note 53, at 1 hr., 35 min., 40 sec. (remarks by Sen. John Bulloch (R11th)).
116. See O.C.G.A. § 12-5-31(p) (Supp. 2010).
Published by Reading Room, 2010
15
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
200
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
reclassification of permits.117 Section 6 of the Act relates to ground
water use permits under Code section 12-5-105 and creates a new
subsection (d) that defines the three types of permits and provides for
notification for reclassification of permits.118
Section 7 of the Act amends Code section 12-5-180.1 regarding
allocation of water and waste-water usage among tenants.119 This
section requires in subsections (c) and (d) that all new multiunit
residential, multiunit retail, and light industrial buildings permitted on
or after July 1, 2012 be constructed so that water use of each unit can
be measured individually.120 Subsection (e) governs reimbursement
for water and waste-water usage of public water systems and owners
or operators of buildings subject to subsections (c) and (d) of this
Code section.121 Lastly, subsection (f) prohibits public water systems
from charging any fee or levy for the installation or use of privately
owned meters or devices measuring water use, but they may charge a
fee or levy for the installation or use of publicly owned meters.122
Section 8 of the Act amends Code section 8-2-3 relating to
building requirements for toilets, shower heads, and faucets.123 Under
the Act, the department must amend applicable minimum state codes
on or before July 1, 2012, so as to require the installation of highefficiency plumbing fixtures in all newly constructed buildings
permitted on or after July 1, 2012.124 The new subsection (b) changes
certain definitions under the Code section,125 and the new subsection
(c) governs the standards relating to high-efficiency plumbing
117. Id.
118. Id. § 12-5-105(d).
119. See id. § 12-5-180.1.
120. Id. § 12-5-180.1(c), (d). This subsection does not apply to buildings constructed or permitted
before July 1, 2012, that are renovated or, after a casualty or condemnation, renovated or rebuilt after
July 1, 2010. Id. It also does not apply to newly-constructed multiunit office buildings and office
components of mixed use developments. Id.
121. See O.C.G.A. § 12-5-180.1(e) (Supp. 2010).
122. Id.
123. Id. § 8-2-3.
124. Id. § 8-2-3(a).
125. Id. § 8-2-3(b). The definitions of “Water closet” and “WaterSenseTM” come from the
International Association of Plumbing and Mechanical Officials’ (IAPMO) guide for sustainable
building practices, the Green Plumbing and Mechanical Code Supplement (GPMCS). Press Release,
IAPMO
(Mar.
30,
2010),
http://www.iapmo.org/Press%20Releases/2010-0330%20IAPMO%20GPMCS%20Georgia%20Chicago.pdf. Georgia and Chicago are the first cities to
incorporate these Green provisions into legislation. Id.
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
16
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
201
fixtures.126 Subsection (d) directs the department to petition the
Department of Energy for a waiver in the event that the standards in
this Code section are federally preempted.127 Subsection (e) was also
amended to require the department to amend applicable minimum
state codes so that counties and municipalities may create ordinances
for exemptions to subsection (c) of the Code section.128 The new
subsection (i) is amended by prohibiting the sale of certain toilets that
exceed set water use limits.129 Lastly, all dates in this Code section
are changed to July 1, 2012.130
Section 9 of the Act amends Code section 8-2-23 by creating a new
subsection (c). It requires the department to amend applicable state
minimum codes on or before July 1, 2012 to include a requirement
that all new construction permitted on or after July 1, 2012 be
installed with high-efficiency cooling towers.131 Section 10 of the Act
creates the Joint Committee on Water Supply to study and analyze
the status of the state’s reservoir system, the need for additional water
supply, and the ways to finance water supply enhancement
measures.132 This section sets forth the member composition of the
committee, when and where committee meetings will be held, the
allowance for committee members, and the funding for the
committee.133 The committee must report its findings and
recommendations no later than December 31, 2010 (the date the
committee will be abolished).134
126. O.C.G.A. § 8-2-3(c) (Supp. 2010).
127. Id. § 8-2-3(d).
128. Id. § 8-2-3(e).
129. Id. § 8-2-3(i).
130. Id. § 8-2-3.
131. Id. § 8-2-23(c). This subsection defines the term “cooling tower” and discusses the standards
relating to high-efficiency cooling towers. See id.
132. SB 370, as passed, § 10, p. 15–16, ln. 511–30, 2010 Ga. Gen. Assem.
133. Id.
134. Id.
Published by Reading Room, 2010
17
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
202
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
Analysis
Uniqueness of the Legislation
The General Assembly has received much praise for the Act, which is
the largest scale conservation bill ever passed in Georgia.135 According to
Pierre Howard, former Lieutenant Governor of Georgia and current
president of the Georgia Conservancy,136 “The Water Stewardship Act is
the most significant, sweeping water conservation in Georgia’s
history. . . . This is a major success for all Georgians because it will save
hundreds of millions of gallons of water every day.”137
Not only does the Act accomplish the important task of protecting
a natural resource, but it is also vital to protecting Georgia’s
economic development.138 Georgia’s population has expanded
significantly in recent years and the state will need adequate water
supplies to sustain that growth.139 A lack of water would undoubtedly
have a negative effect on growth, industry, and business. Being in the
Sunbelt, Georgia has a large green industry, as well as a significant
swimming pool industry.140 During the extreme drought of 2007,
these industries were severely affected.141 The Green Industry, which
includes horticulture, landscaping, and urban agriculture, was hit hard
that year by the drought and subsequent water restrictions, as sales
dropped by $3 billion and 35,000 people lost their jobs.142 The $150
million swimming pool industry also “felt a crippling blow” that
summer.143 The Metro Atlanta Chamber of Commerce described the
effects of the 2007 drought and watering ban as “the biggest and most
135. Tolleson Interview, supra note 51. See also Wingate Interview, supra note 40.
136. The Georgia Conservancy's mission is to “develop solutions to protect Georgia’s environment
and promote the stewardship of the state’s vital natural resources.” Georgia Conservancy,
https://www.georgiaconservancy.org/index.php?page=mission-history.
137. Georgia Conservancy, Georgia Legislature Passes Nation's Premier Water Conservation
Package, https://www.georgiaconservancy.org/index.php?page=water-stewardship-act (last visited July
1, 2010).
138. Wingate Interview, supra note 40.
139. Id.
140. Fairweather & Jones, supra note 7, at 119.
141. Id.
142. Id.
143. Id.
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
18
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
203
imminent economic threat to our region.”144 This Act takes an
important first step in making sure that Georgia avoids an economic
crisis of this scale, or perhaps even larger, in the future.
In addition to being the most important piece of water conservation
legislation in Georgia’s history, the Act is also the most far-reaching
piece of water conservation legislation in the country.145 “Georgia
now leads most states in the nation when it comes to 21st century
water supply solutions,” said Jenny Hoffner, water supply program
director of American Rivers, a national water advocacy group.146
Several other states have enacted water conservation legislation,
but none are as extensive in scope as Georgia’s Water Stewardship
Act. For example, in 2003, Texas passed multiple water conservation
bills147 that imposed new conservation prerequisites on the
condemnation of groundwater resources;148 restricted homeowner’s
associations’ from discouraging outdoor conservation;149 introduced
new requirements for water conservation plans for applicants seeking
state funding for water supply projects;150 implemented new
requirements for public utilities to perform water loss audits;151 and,
created a Water Conservation Implementation Task Force to evaluate
Texas’ water conservation measures and make recommendations to
the legislature.152 Additionally, in 2003, the Washington state
legislature passed the Municipal Water Supply-Efficiency
Requirements Act, which created a department to adopt new water
efficiency rules for the Department of Health and Office of Drinking
144. Id. (citing Charles Davidson, Will the Southeast's Water Woes Become Water Wars?, 9
ECONSOUTH 28 (2007), http://www.frbatlanta.org/invoke.cfm?objectid=21A0C794-5056-9F1212AADD74A26AB96A&method=display.body).
145. Tolleson Interview, supra 63 (“[W]e’ve done more than any general assembly has ever done on
water.”); see also, Wingate Interview, supra note 40 (“This is the strongest water conservation bill
passed in any legislature in the country.”).
146. Georgia Conservancy, Georgia Legislature Passes Nation's Premier Water Conservation
Package, https://www.georgiaconservancy.org/index.php?page=water-stewardship-act.
147. Texas Water Matters, http://www.texaswatermatters.org/conservation_laws.htm (listing Texas’
various water conservation bills).
148. TEX. PROP. CODE § 21.0121 (2010).
149. Id. § 202.007.
150. TEX. WATER CODE § 15.106 (2010).
151. Id. § 16.0121.
152. Texas SB 1094 (2003). The Task Force was abolished after the report was issued. More
information regarding this initiative is available at http://www.twdb.state.tx.us/assistance/
conservation/taskforce.asp.
Published by Reading Room, 2010
19
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
204
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
Water by 2005.153 The resulting rules included new requirements for
metering, guidelines for leak detection, conservation pricing, and
guides for water conservation using gray water and water reclamation
and reuse.154 Furthermore, like Georgia, several states have adopted
initiatives to address water use by the agricultural industry.155
However, no other state has enacted a state-wide watering ban, and
although states commonly encourage residents to install energy
efficient bathroom fixtures, Georgia is the first state to mandate
energy efficient fixtures in new construction.156
The Act’s Impact on Negotiations with Florida and Alabama
“This legislation promotes water conservation in Georgia and
shows our neighbors that we are serious about being good stewards
of our natural resources,” Governor Sonny Perdue said, regarding the
Water Stewardship Act.157 As Governor Perdue’s statement reflects,
the not-so-subtle intent of the General Assembly in passing the Act
was to influence the ongoing negotiations with Florida and Alabama,
Congress, and the court hearing Georgia’s appeal158 of the recent
district court’s decision in In re Tri-State.
First, many legislators hope that the Act will help the Governors of the
three states negotiate an agreement by showing that Georgia is doing its
part to conserve.159 In October 2009, Georgia legislators met with
congressmen from Alabama and Florida and agreed for their respective
153. REV. CODE WASH. § 70.119A.180 (2010).
154. Municipal Research and Services Center of Washington, http://www.mrsc.org/Subjects/
Environment/water/wc-measures.aspx; see generally WASH. STATE DEP’T. OF HEALTH, WASHINGTON WATER
EFFICIENCY GUIDEBOOK (2009), available at http://www.doh.wa.gov/ehp/dw/Publications/331-375.pdf.
155. See Lawrence J. MacDonnell & Teresa A. Rice, Moving Agricultural Water to Cities: The
Search for Smarter Approaches, 14 HASTINGS W.-N.W. J. ENV. L. & POL'Y 105, 107 (2008).
156. California, for example, encourages “[l]ow-flow toilets, urinals, sinks, and shower fixtures; highefficiency clothes washers, and low water consumption kitchen appliances improve water use
efficiency” in its Green California Best Practices Manual. California Department of General Services,
http://www.green.ca.gov/EPP/building/SaveH2O.htm (last visited Oct. 17, 2010). However, California
does not have an “across-the-board rule requiring water conservation.” Dave Owen, Law, Environmental
Dynamism, Realiability: The Rise and Fall of Calfed, 37 ENVTL. L. 1145, 1188 (2007).
157. Ashley Speagle, Georgia Lawmakers OK Perdue’s Water Plan, CHATTANOOGA TIMES FREE
PRESS, Mar. 11, 2010, at N1.
158. Rankin, supra note 30.
159. Interview with Representative Tom McCall (R-30th) (Apr. 28, 2010) [hereinafter “McCall
Interview”].
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
20
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
205
Governors to begin negotiations for a settlement.160 The Governors have
been engaged in closed-door negotiations, and many believe that they are
close to reaching an agreement.161 A settlement would benefit Georgia in
many ways. For one, once an agreement is made with Florida and
Alabama, Congress would likely provide Georgia with the needed
reauthorization to use Lake Lanier for drinking water.162 Thus, an
agreement would prevent Judge Magnuson’s ruling from going into
effect and Georgia losing access to Lake Lanier for the 280 million
gallons of water it needs per day.163 An additional benefit would be
saving the state millions of dollars more in legal fees in the midst of a
severe state budget deficit. Just since 1996, Georgia has spent nearly $6.7
million on outside legal counsel for the litigation, and the Atlanta
Regional Commission has spent $5 million.164 These numbers do not
account for expenses of litigation before 1996, the recent appeal in the
case, or costs of inside counsel.
Although its primary goal is to reach a negotiated agreement,
Georgia has also taken the next step in the litigation by appealing
Judge Magnuson’s decision.165 Although Judge Magnuson declined
to issue a final judgment in the case, Georgia nevertheless appealed
to the Eleventh Circuit, which granted review in January 2010.166
Criticisms of the Act and Issues Unresolved by the Act
One criticism of the Act is that Georgia lawmakers should have
made more efforts towards water conservation long before now.167
Even legislators agree that this Act should have been passed years
ago.168 Nevertheless, critics agree that the Act is undoubtedly a step
160. Edgar Treiguts, Governors Told: Get Moving on Water Talks, GPB NEWS, Oct. 28, 2009,
http://www.gpb.org/news/2009/10/28/governors-told-get-moving-on-water-talks.
161. Tolleson Interview, supra note 51.
162. Id.
163. Edwards & Capelouto, supra note 31.
164. Jeffry Scott, State Billed Millions for Lake Lanier Litigation, ATLANTA J.-CONST., July 29, 2009,
available at http://www.ajc.com/news/state-billed-millions-for-102920.html.
165. Rankin, supra note 30.
166. Id.
167. Tom Crawford, Fighting Water Wars, FLAGPOLE, Mar. 23, 2010, available at
http://flagpole.com/Weekly/CapitolImpact/FightingWaterWars-24Mar10.
168. See Tolleson Interview, supra note 51; Interview with Representative Doug McKillip (D-115th)
(Apr. 26, 2010) [hereinafter “McKillip Interview”].
Published by Reading Room, 2010
21
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
206
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
in the right direction for Georgia.169 The major question remaining is:
What needs to be done now? Conservation was the first part of the
Water Contingency Planning Task Force’s recommendations and was
easily implemented because it was the most cost-effective, low
impact, and timely solution.170 Conservation alone will not solve
Georgia’s water problems,171 and the state must implement other
measures to address the gap in water supply.172 The Task Force’s
additional recommendations included a large indirect potable reuse
project and more cost effective reservoir expansions; however, the
timeline for implementing these solutions would be 2015 and 2020,
respectively.173 Conservation was the only solution that the Task
Force recommended for implementation by 2012.174
“Inter-basin transfers” is a hot topic, though not a solution
recommended by the Task Force. The Act was specifically limited to
water conservation and did not address the issue of possible interbasin transfers to Atlanta from sources such as Lake Hartwell, Lake
Burton, the Flint River Basin, or the Coosa River Basin.175 Because
the issue is so emotionally charged, language regarding inter-basin
transfers was left out of the Act.176 The reason for the emotion
surrounding the issue is that some fear that water will be pumped
from rivers and lakes throughout the state into Atlanta.177
Representative Doug McKillip (D-115th) commented that he would
169. E.g., Crawford, supra note 167; A Positive Step in Georgia, CHATTANOOGA TIMES FREE PRESS,
Mar. 12, 2010, at B6.
170. TASK FORCE FINDINGS AND RECOMMENDATIONS, supra note 39, at 9.
171. Interview with Harold Reheis, Senior Vice President, Joe Tanner & Associates (May 3, 2010)
[hereinafter “Reheis Interview”]. Mr. Reheis was the Director of the Environmental Protection Division
of the Georgia Department of Natural Resources from 1991 to 2003 and served on the Georgia Water
Contingency Planning Task Force.
172. Id.; A Positive Step in Georgia, CHATTANOOGA TIMES FREE PRESS, Mar. 12, 2010, at B6
(“Georgia’s water woes are far too complex for one bill, useful as it might be, to cure . . . . Hard work
remains to be done if Georgia, especially Atlanta, is to manage its insatiable and insupportable appetite
for water. If that is to be done, the conservation bill must be buttressed by still broader revision of
building codes, by creation of long-term growth plans, by significant improvement in infrastructure, by
reservoir development and by conservation programs barely touched upon in the current legislation.”).
173. TASK FORCE FINDINGS AND RECOMMENDATIONS, supra note 39, at 39.
174. Id .at 9.
175. Crawford, supra note 167. This author contends, “If Atlanta cannot regain full access to the
water in Lake Lanier, its only real option is to pipe in water from river basins outside the region.” Id.
176. Tolleson Interview, supra note 51.
177. See McCall Interview, supra note 158. Representative McCall, who lives in Savannah, explains,
“[W]e’ve always been nervous that instead of Atlanta correcting their problems, as far as leaks and
conversation and all, if they would just stick a straw in either Lake Hartwell or Lake Russell.”
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
22
: CONSERVATION AND NATURAL RESOURCES Water Resources
2010]
LEGISLATIVE REVIEW
207
have liked to have seen language in the Act ordering a study of such
transfers, which would assure that the environmental impacts of interbasin transfers would be properly analyzed.178 Senator Ross Tolleson
(R-20th), who serves as chairman of the Senate’s Natural Resources
and Environment committee, says that this issue will definitely be
studied over the summer and fall.179
The legality of even implementing inter-basin transfers is
somewhat questionable. Code section 12-5-584 prohibits the
Metropolitan North Georgia Water Planning District from
“study[ing] or includ[ing] in any plan any inter-basin transfer of
water from outside the district area.” However, according to
Representative Tom McCall (R-30th), the District could take water
from “Lake Seminole as long as they released the water back into
either the land of the Chattahoochee basin” or from “Lake Yellow,
Lake Alcovy, or Lake St. Blair as long as they let it go back in to the
Oconee basin or any of the basins that originate in the metro area.”180
Representative McCall sponsored House Bill (HB) 1301, known as
the “River Basin Protection Act.” HB 1301 was introduced in the
2009–2010 session and seeks to protect donor basins by setting forth
regulations for inter-basin transfers.181 The bill was stalled in the
House Second Readers in March of 2010 and never moved
forward.182 An amendment adding inter-basin transfer language to SB
442, known as the “Water System Interconnection, Redundancy, and
Reliability Act,” was defeated in the Senate.183 This bill provides for
a water supply plan in the event of an emergency.184 The bill passed
in the Senate and was favorably reported in the House but did not
ultimately pass in the 2009–2010 session.185 However, the Senate
version of this Act, SB 380, which did not contain the inter-basin
transfer language, did pass both Houses.186 Even though inter-basin
178.
179.
180.
181.
182.
183.
184.
185.
186.
Published by Reading Room, 2010
McKillip Interview, supra note 167.
Tolleson Interview, supra note 51.
McCall Interview, supra note 158.
HB 1301, 2010 Ga. Gen. Assem.
State of Georgia Final Composite Status Sheet, HB 1301, Apr. 29, 2010.
SB 442, 2010 Ga. Gen. Assem.
Id.
State of Georgia Final Composite Status Sheet, SB 442, Apr. 29, 2010.
State of Georgia Final Composite Status Sheet, SB 380, Apr. 29, 2010.
23
Georgia State University Law Review, Vol. 27 [2010], Iss. 1, Art. 10
208
GEORGIA STATE UNIVERSITY LAW REVIEW
[Vol. 27:1
transfer bills were not successful in the 2009–2010 session, they will
likely be reintroduced in the future.
Consequences of the Act
The implementation of SB 370 will not be without costs, and these
costs will be left to local governments.187 This may be difficult in a
time when local governments are facing severe budget crises.
However, according to Will Wingate of the Georgia Conservancy,
the Georgia Environmental Facilities Authority currently funds
statewide water councils and should be able to provide funding for
these initiatives.188 Furthermore, part of the bill is for departments to
examine pricing structures so as to not punish those that conserve.189
Conclusion
The Water Stewardship Act is not controversial in the sense that
there is a likelihood it might face legal challenges. However, the
circumstances surrounding the Act’s passage are highly controversial.
The Act grows from a twenty-year legal battle over the highly
coveted water of Lake Lanier and Judge Magnuson’s ruling that
Georgia has no right to that water. Without an agreement with the
neighboring states of Florida and Alabama, Georgia faces the stark
possibility of leaving metro-Atlanta without the millions of gallons of
drinking water needed to keep the city hydrated on a daily basis.
Resolution of this issue is vital, as water is a necessity for continued
growth and economic development in the state. Although it took a
ruling from a federal court to spur the General Assembly to action,
the result is a model conservation bill that will benefit Georgians for
years to come. Conservation alone will not solve all of Georgia’s
water problems, but the Act is an important first step.
Kristen Bolden & Crystal Genteman
187. Reheis Interview, supra note 170.
188. Wingate Interview, supra note 40.
189. Id.
http://readingroom.law.gsu.edu/gsulr/vol27/iss1/10
24